Madras High Court
M. Ponnusamy, R. Athammal And C. Rani vs T. Panneerselvam And New India ... on 13 November, 2007
Author: P.P.S. Janarthana Raja
Bench: P.P.S. Janarthana Raja
JUDGMENT P.P.S. Janarthana Raja, J.
1. These Civil Miscellaneous Appeals are filed both by the claimants as well as the Insurance Company against the Judgment and Decree dated 28.04.1999 made in MACT.OP Nos. 665 of 1995, 667 of 1995, 666 of 1995 on the file of the III Judge, Court of Small Causes (Motor Accidents Claims Tribunal), Chennai.
2. Background facts in a nutshell are as follows:
The claimants were injured in a road traffic accident on 09.01.1995 at 14.00 hours. The claimants were passengers travelling in an auto-rickshaw bearing Registration No. TMM-9966 from west to east direction in the MKB Nagar, Central Avenue Road. The auto-rickshaw was driven by its driver in a rash and negligent manner and when it reached the junction of MKB Nagar, 4th Main Road, dashed against a scooter which was proceeding in MKB Nagar, 4th Main Road from north to south direction. Due to the accident, the claimants sustained serious injuries. The auto-rickshaw was insured with the Insurance Company, who is the second respondent in CMA Nos. 1270 to 1272 of 1999 and appellant in CMA Nos. 1470 to 1472 of 1999. The claimants are Ponnusamy, Athammal and Rani, who are the father, mother and daughter respectively. The claimants filed Claim Petitions before the Tribunal. On the pleadings, the Tribunal framed the following issues:
a) Whether the accident had occurred due to the rash and negligent driving of the driver of the auto-rickshaw or not?
b) Whether the claimants are entitled to receive compensation or not? If so, what is the amount and from whom?
After considering the materials and evidence available on record, the Tribunal awarded compensation. The details regarding the same are as under:
Sl. CMA No. O.P. No. Amt. claimed Amt.awarded No. (Rs.) (Rs.) 1. 1270/1999 665/95 2,00,000/- 62,300/- 2. 1271/1999 667/95 1,00,000/- 46,700/- 3. 1272/1999 666/95 8,00,000/- 2,01,000/-
In all the above claim petitions, the Tribunal awarded the interest rate at 12% p.a. from the date of petition.
Aggrieved by the award amounts, both the claimants as well as the Insurance Company have filed the present appeals. The appeals filed by the Insurance Company are CMA Nos. 1468, 1469 and 1470 of 1999, corresponding to CMA Nos. 1270, 1272 and 1271 of 1999 filed by the claimants, respectively.
3. Learned Counsel appearing for the claimants has submitted that the Tribunal ought to have awarded a fair and reasonable compensation and it is wrong on the part of the Tribunal in awarding a less and meagre amount of compensation against the claimed amounts. Therefore it is submitted that the common order passed by the Tribunal is not in accordance with law and these are fit cases for enhancement.
4. Learned Counsel appearing for the Insurance Company has submitted that the Tribunal is wrong in holding that the accident had occurred only due to the rash and negligent driving of the auto-rickshaw driver. It is also further contended that the Tribunal had awarded excessive and exorbitant compensation amounts without basis and justification. It is also further submitted that the auto-rickshaw driver has licence only to drive a non-transport vehicle and he had no licence to drive and badge to drive auto-rickshaw. It is also further contended that there is violation of the terms and conditions of the Insurance Policy. Therefore, the common order passed by the Tribunal is not in accordance with law and the same has to be set aside.
5. Heard the counsel. On the side of the claimants, P.W. 1 to P.W. 6 were examined and documents Ex.P1 to Ex.P16 were marked. On the side of the Insurance Company, R.W. 1 to R.W. 3 were examined and documents Ex.R1 to Ex.R3 were marked. P.W. 1 is the claimant in MCOP No. 665/95. P.W. 2 is the claimant in MCOP No. 666/95. P.W. 3 is the claimant in MCOP No. 667/95. P.W. 4 is one Raghupathy. P.W. 5 is one Mohammed Yusuf, Sub-Inspector. P.W. 6 is Dr. J.R.R. Thiagarajan. R.W. 1 is Dr. Krishna Rao. R.W. 2 is one Kumaravel and R.W. 3 is one V.S. Ganesh. Ex.P1 is the hospital out-patient slip. Ex.P2 and Ex.P5 are Discharge Summaries. Ex.P3 is the series of out-patient slips from the Hospital at Puthur. Ex.P4 is the medical slips. Ex.P6 to Ex.P8 are the case sheets. Ex.P9 is the copy of First Information Report. Ex.P10 is the rough sketch. Ex.P11, Ex.P13 and Ex.P15 are the disability certificates of the claimants, Ponnusamy, Rani and Athammal, respectively. Ex.P12, Ex.P14 and Ex.P16 are the X-rays. Ex.R1 is the extract of registers. Ex.R2 is copy of the extract of Driving Licence. Ex.R3 is the Insurance Policy.
6. Ponnusamy, who is the appellant/claimant in CMA No. 1270 of 1999 and first respondent in CMA No. 1468 of 1999 (MCOP No. 665 of 1995) had given oral evidence that on 09.01.1995 at about 2.00 p.m., he was travelling with his wife and daughter in an auto-rickshaw bearing Registration No. TMM-9966 proceeding from west to east direction in the MKB Nagar, Central Avenue Road and the driver of the auto-rickshaw drove the vehicle in a rash and negligent manner and dashed against a scooter and the auto-rickshaw turned turtle. Athammal, who is the appellant/claimant in CMA No. 1271 of 1999 and first respondent in CMA No. 1470 of 1999 (MCOP No. 667 of 1995) had given oral evidence that while she was travelling along with her husband and daughter in an auto-rickshaw, the accident had occurred, due to which she sustained injuries. Rani, who is the appellant/claimant in CMA No. 1272 of 1999 and first respondent in CMA No. 1469 of 1999 (MCOP No. 666 of 1995), had given oral evidence that she was travelling along with her father and mother in an auto-rickshaw and that the driver drove the vehicle carelessly due to which the auto-rickshaw turned turtle and caused the accident. P.W. 4 is the Radiologist working in Government Stanley Hospital. He stated that all the claimants have taken treatment and documents Ex.P6, P7 and P8-Case sheets were marked. P.W. 5, Mohammed Yusuf, Sub-Inspector has also given evidence that P.W. 1-Ponnusamy had given a complaint and on the basis of the same, F.I.R. was lodged. Later, the driver of the auto-rickshaw was charge sheeted under Section 338 I.P.C. and under Section 184 of Motor Vehicles Act. Ex.P9 is the F.I.R. and Ex.P10 is the rough sketch. P.W. 6, Dr. Thiagarajan, in his evidence, stated that the claimants sustained injuries. After considering the above evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rash and negligent driving of the driver of the auto-rickshaw.
CMA No. 1270 of 1999 and CMA No. 1468 of 1999 (MCOP No. 665 of 1995):
The claimant Ponnusamy was 45 years old at the time of accident. He was treated by Dr.Thiagarajan, P.W. 6. Due to the accident the claimant sustained grievous injuries. The nature of injuries are:
Severe degloving injury and flesh completely removed in left leg heel and fracture in left leg heel and fracture in left leg ankle. Fracture in left hand shoulder. Severe injury in head. Multiple internal and external injuries all over the body.
The claimant was admitted in the Government Stanley Hospital as in-patient for a week and Ex.P1 is the out-patient slip. The disability was assessed at 30% and Ex.P11-Disability Certificate and Ex.P12-X-ray are marked. After considering the above evidence, the Tribunal awarded a sum of Rs. 62,300/- as compensation. The details of the compensation are as under:
Rupees
Loss of income during the treatment period 9,000/-
Transport expenses 400/-
Extra nourishment 2,500/-
Damages to articles 400/-
Pain and suffering 10,000/-
Permanent disability 30,000/-
Loss of earning power 10,000/-
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Total... 62,300/-
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The Tribunal has awarded a sum of Rs. 9,000/- towards loss of income during the treatment period, as against the claim of Rs. 17,500/-. The claimant is a masonry worker and also selling sweets. It was claimed that the claimant was earning Rs. 3,500/- per month. He has also taken treatment as in-patient in the Government Stanley Hospital and Ex.P1 is the hospital out-patient slip. Taking into consideration of the same, the Tribunal held that the claimant would have lost income during the treatment period and hence awarded a sum of Rs. 9,000/- towards loss of income during the treatment period, which I feel is very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs. 400/- towards transport expenses, Rs. 2,500/- towards extra nourishment, Rs. 400/- towards damages to articles, which are very reasonable and hence they are confirmed. The Tribunal has awarded a sum of Rs. 10,000/- towards pain and suffering. After taking into consideration the nature of the injuries stated above, I feel that the amount awarded towards pain and suffering is very reasonable and hence it is confirmed. The Tribunal has awarded a sum of Rs. 30,000/- towards permanent disability. P.W. 6, the Doctor has given disability certificate, Ex.P11, stating that there is a disability of 30%. Based on this evidence, the Tribunal has awarded Rs. 30,000/- towards permanent disability. Hence the amount awarded towards permanent disability is confirmed. The Tribunal has also awarded a sum of Rs. 10,000/- towards loss of earning power. Considering the fact that the claimant is a masonry worker and the fact that he is unable to attend to his work because of the injuries sustained, I feel that the Tribunal is correct in awarding Rs. 10,000/- towards loss of earning power and hence the same is confirmed. The interest rate awarded by the Tribunal at 12% p.a. from the date of petition is confirmed as the same was the prevailing rate at that time. The findings given by the Tribunal are based on valid materials and evidence and I do not find any error or illegality in the order of the Tribunal so as to warrant interference. Therefore, the claimant Ponnusamy is entitled to the compensation awarded by the Tribunal at Rs. 62,300/- with interest at 12% p.a. from the date of petition. Accordingly, CMA Nos. 1270 of 1999 and 1468 of 1999 are dismissed.
CMA No. 1271 of 1999 and CMA No. 1470 of 1999 (MCOP No. 667 of 1995):
The claimant Athammal was 40 years old at the time of accident. Due to the accident, the claimant sustained injuries. The nature of injuries are:
Dislocation of bone in right leg knee. Fracture in right hand shoulder. Severe injury in the head. Multiple internal and external injuries all over the body.
She was admitted to the Government Stanley Hospital from 09.01.1995 to 11.01.1995 and Ex.P5 is the Discharge Summary. Ex.P8 is the case sheet. In view of the injuries, the claimant is not able to attend to her work. After considering the above evidence, the Tribunal awarded a sum of Rs. 46,700/- as compensation. The details of the compensation are as under:
Rupees
Loss of income during the treatment period 9,000/-
Transport expenses 400/-
Extra nourishment 2,000/-
Damages to articles 300/-
Pain and suffering 10,000/-
Permanent disability 25,000/-
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Total... 46,700/-
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The Tribunal has awarded a sum of Rs. 9,000/- towards loss of income during the treatment period. The claimant is a masonry worker and was earning Rs. 2,500/- per month. After taking into consideration the treatment taken in the Govt. Stanley Hospital and also the Discharge Summary, Ex.P5 and case sheet, Ex.P8, the Tribunal has awarded a consolidated sum of Rs. 9,000/- towards loss of income during the treatment period, which I feel is very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs. 400/- towards transport expenses, Rs. 2,000/- towards extra nourishment, Rs. 300/- towards damages to articles, which are very reasonable and hence they are confirmed. The Tribunal has awarded a sum of Rs. 10,000/- towards pain and suffering. After taking into consideration the nature of the injuries, I feel that the amount awarded towards pain and suffering is very reasonable and hence it is confirmed. The Tribunal has awarded a sum of Rs. 25,000/- towards permanent disability. The disability was fixed at 30% and the claimant was admitted to the Government Stanley Hospital from 09.01.1995 to 11.01.1995 and Ex.P5 is the Discharge Summary. Based on this evidence, the Tribunal has awarded Rs. 25,000/- towards permanent disability. Hence the amount awarded towards permanent disability is confirmed. The interest rate awarded by the Tribunal at 12% p.a. from the date of petition is confirmed as the same was the prevailing rate at that time. The findings given by the Tribunal are based on valid materials and evidence and I do not find any error or illegality in the order of the Tribunal so as to warrant interference. Therefore, the claimant Athammal is entitled to the compensation awarded by the Tribunal at Rs. 46,700/- with interest at 12% p.a. from the date of petition. Accordingly, CMA Nos. 1271 of 1999 and 1470 of 1999 are dismissed.
CMA No. 1272 of 1999 and CMA No. 1469 of 1999 (MCOP No. 666 of 1995):
The claimant Rani was 25 years old at the time of accident. Due to the accident, the claimant sustained injuries. The nature of injuries are:
Compound fracture in left side hip bone. Severe injury and dislocation of bone in left leg ankle and knee. Severe injury in head. Multiple internal and external injuries all over the body.
She was admitted in the Government Stanley Hospital for a period of 10 days, i.e. from 09.01.1995 to 18.01.1995 and Ex.P2 is the Discharge Summary. She also went to Puthur for treatment on 06.03.1995, 20.03.1995 and 27.03.1995 and Ex.P3 is the series of out-patient slips from the Hospital at Puthur. She also took treatment in Anna Hospital on 05.09.1996 and Ex.P4 is the medical slips given by Anna Hospital. Ex.P7 is the case sheet. Taking into consideration of the above evidence, the Tribunal awarded a sum of Rs. 2,01,000/- as compensation. The details of the compensation are as under:
Rupees
Loss of income during the treatment period 9,000/-
Transport expenses 1,000/-
Extra nourishment 5,000/-
Damages to articles 500/-
Medical expenses 500/-
Loss of marriage prospects 25,000/-
Mental shock 5,000/-
Pain and suffering 15,000/-
Permanent disability 70,000/-
Loss of earning power 70,000/-
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Total... 2,01,000/-
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The Tribunal has awarded a sum of Rs. 9,000/- towards loss of income during the treatment period. The claimant is a masonry worker and she claimed that she was earning Rs. 2,500/- per month. But there is no evidence to substantiate the claim. After taking into consideration the facts and circumstances of the case, the Tribunal fixed the monthly income of the claimant at Rs. 1,500/-. Considering the above evidence, the Tribunal was of the view that the claimant took treatment for a period of 6 months and hence she lost her income during the treatment period. Therefore, the Tribunal awarded a sum of Rs. 9,000/- (Rs. 1,500/- x 6) towards loss of income during the treatment period, which I feel is very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs. 1,000/- towards transport expenses, Rs. 5,000/- towards extra nourishment, Rs. 500/- towards damages to articles and Rs. 500/- towards medical expenses, which are very reasonable and hence they are confirmed. The Tribunal has awarded a sum of Rs. 25,000/- towards loss of marriage prospects. P.W. 6, the Doctor has given evidence that because of the injuries, she cannot walk for substantial distance and cannot stand for substantial period of time. Further the Doctor had given evidence that she suffered chronic back pain which had interfered materially with the quality of her life and with her ability to work and she is likely to remain in her existing situation for the balance of her life, which will certainly affect the marriage prospects. Further, there is a substantial interference in the ability to carry on the usual functions of life in a pain-free manner, including the ability to perform household functions. Taking into consideration the nature of injuries and also the evidence of the Doctor, the Tribunal has correctly awarded a sum of Rs. 25,000/- towards loss of marriage prospects, which is very reasonable and hence the same is confirmed. The Tribunal has awarded a sum of Rs. 5,000/- towards mental shock and Rs. 15,000/- towards pain and suffering, which are also very reasonable and hence they are confirmed. The Tribunal has awarded a sum of Rs. 70,000/- towards permanent disability. The disability was fixed at 70% and Ex.P13 is the Disability Certificate. Taking into consideration of the same, the Tribunal is correct in awarding Rs. 70,000/- towards permanent disability and hence the same is confirmed. The Tribunal has awarded a sum of Rs. 70,000/- towards loss of earning power. Considering the fact that the claimant is a masonry worker and the fact that she is unable to attend to her work because of the injuries sustained, I feel that the Tribunal is correct in awarding Rs. 70,000/- towards loss of earning power and hence the same is confirmed. The interest rate awarded by the Tribunal at 12% p.a. from the date of petition is confirmed as the same was the prevailing rate at that time. The findings given by the Tribunal are based on valid materials and evidence and I do not find any error or illegality in the order of the Tribunal so as to warrant interference. Therefore, the claimant Rani is entitled to the compensation awarded by the Tribunal at Rs. 2,01,000/- with interest at 12% p.a. from the date of petition. Accordingly, CMA Nos. 1272 of 1999 and 1469 of 1999 are dismissed.
7. It is stated by the counsel appearing for the Insurance Company that the Insurance Company had already deposited the entire compensation awarded by the Tribunal in all these appeals and the claimants have also withdrawn 50% of the deposited amounts. Hence the claimants are permitted to withdraw their balance 50% amounts from the respective deposits.
8. The counsel appearing for the Insurance Company took a specific stand that the driver of the auto-rickshaw bearing Registration No. TMM-9966 had licence only to drive a non-transport vehicle and he had no licence to drive auto-rickshaw and also there is a violation of the terms and conditions of the Insurance Policy. Hence, he pleaded that the Insurance Company may recover the amounts from the owner of the vehicle. The owner of the vehicle has been set exparte by the Lower Court. It is for the Insurance Company to proceed against the owner of the vehicle to recover the amounts, if so advised.
9. Accordingly all the Civil Miscellaneous Appeals are dismissed. No costs.